Thursday, May 21, 2009
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Court: Accusation of Prosecutorial Misconduct was Sanctionable
By SHERRI M. OKAMOTO, Staff Writer
A Los Angeles deputy public defender’s accusation of prosecutorial misconduct as part of his argument to the jury was sanctionable conduct, this district’s Court of Appeal ruled yesterday.
Div. Seven held that Joohan J. Song’s statement was not proper advocacy and a violation of Los Angeles Superior Court Judge Patrick T. Madden’s lawful order that he refrain from using the phrase “prosecutorial misconduct” with the jury.
The panel, however, reversed and sent the case back to the trial court for preparation of a written order detailing the reasons for imposing sanctions.
Song appeared in Madden’s courtroom as appointed counsel for a misdemeanor matter. On the first day of trial, Madden specifically instructed counsel that he had a rule against speaking objections.
Later, during the prosecutor’s redirect of a witness, Song objected and began stating the basis for his objection, which included an allegation of prosecutorial misconduct.
Attorney Admonished
After the jury was excused, Madden asked Song for the basis of his misconduct claim. Song withdrew his objection and Madden admonished him “to not make such a claim, ever, in front of a jury.”
The following day, the prosecutor requested that Madden instruct the jury that the accusation was unfounded and the jury was not to consider it. Song defended his accusation, and Madden again told him he should not have made the accusation in front of the jury.
Madden added that he thought the defense attorney had committed misconduct by making the “highly prejudicial” allegation in front of the jury, and warned Song: “I don’t want to hear in front of this jury ‘prosecutorial misconduct.’”
In closing arguments, Song made a statement that prosecutors “should play by the rules,” and that the prosecutor had violated his client’s right to remain silent.
Although Madden interrupted him, Song continued his argument, maintaining that the prosecutor had committed misconduct.
The judge then proceeded to instruct the jury to disregard Song’s argument and that there was no evidence of any prosecutorial misconduct, and Song began again with the statement that “[w]e should all play by the rules,” before being cut off by Madden, who told Song “do not make this argument.”
At a subsequent contempt hearing, Song apologized for disobeying Madden’s orders. Madden accepted the apology and purged the contempt, but imposed sanctions of $200 under Code of Civil Procedure Sec. 177.5, which allows a juridical officer to impose sanctions based on the violation of a lawful court order.
Inherent Power
Song appealed the sanction order to the Superior Court Appellate Division, and a panel comprised of Los Angeles Superior Court Judges Patti Jo McKay, Fumiko Hachiya Wasserman and Debre Katz Weintraub ruled Madden’s order that counsel not mention “prosecutorial misconduct” in front of the jury was a proper exercise of the trial court’s inherent power to control the proceedings before it.
The panel was not persuaded by Song’s contention that “advocacy of counsel” included the right to violate a lawful court order, but it reversed the sanctions order due to the trial court’s failure to prepare a written order and remanded for the trial court to remedy this defect and Song again appealed.
Writing for the appellate court, Justice Frank Y. Jackson acknowledged that Song had to raise the argument of prosecutorial misconduct in the trial court in order to preserve the claim for review, but said Song was not required to utter the specific words “prosecutorial misconduct” in front of the jury.
Client’s Interests Protected
As Song could have made his objection and asked to approach the bench to raise the issue out of the presence of the jury, Jackson reasoned the trial court’s order that defense counsel refrain from saying the words “prosecutorial misconduct” in front of the jury did not interfere with Song’s ability to protect his client’s interests and was therefore not inconsistent with due process or the statewide rules of court.
Noting that Song also had an opportunity to present his points and argue his position, Jackson concluded that sanctions were not imposed on the attorney for his advocacy, but for his use of certain words in front of the jury despite a direct order that he not do so.
Although Jackson, joined by Justices Fred Woods and Laurie D. Zelon, agreed that the attorney could be sanctioned, he said the trial judge needed to make the requisite written recital of the basis for the order.
Long Beach City Prosecutor Thomas M. Reeves argued the appeal and said the decision was “quite right.”
He predicted that there may be some requests by some prosecuting agencies to have trial courts instruct the defense to refrain from the use of the phrase “prosecutorial misconduct” in the future.
Reeves claimed that to a jury “that’s a pejorative term,” and “it’s not the same as saying ‘objection, hearsay’” so its use is “not to be treated lightly.”
Deputy Public Defenders Albert J. Menaster and Mark Harvis represented Song.
Harvis said that he anticipated a petition for review would be filed, adding: “We firmly believe that argument to a jury is advocacy of counsel and that this opinion chills the ability of attorneys, including prosecutors, to vociferously argue their cases.”
Song could not be reached for comment. A graduate of Loyola Law School, Song was admitted to the State Bar in 2004.
In April the State Bar recommended that he be suspended from the practice of law for two years, stayed, with 90 days actual suspension, and be placed on probation for two years based on a finding of moral turpitude related to a 2008 misdemeanor reckless driving conviction.
The case is People v. Ward, 09 S.O.S. 2789.
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